For decades, military spending has been the largest item in the United States federal budget. With the continued demand for weapons systems and myriad military logistical needs, a thriving domestic economy has, to some significant degree, become reliant on the defense budget remaining high. In addition, few Americans question the need for a well-funded, well-equipped, well-staffed, modern military.
During the Founding period, the situation could not have been more different. During the war, “The army was ragtag, barely trained, half-starving, and woefully unequipped.”[1] What George Washington commanded was, in many ways, not really an army at all, but rather a group of hastily thrown together militias and civilians who volunteered to fight without training, proper equipment, and often without pay.
After the British defeat at Yorktown, for which at least equal credit must go to the French, much of the army disbanded, many of the soldiers returning home unpaid only to find themselves in debt and with their property either seized or about to be. With a peace treaty yet to be concluded, however, the army was forced to retain sufficient officers and men to again repel the British if the need arose.
This did not sit well with most of the nation’s leaders. A standing army was considered as much of a threat to liberty as a foreign invader. In 1776, for example, Samuel Adams wrote to a friend, “A Standing Army, however necessary it may be at some times, is always dangerous to the Liberties of the People. Soldiers are apt to consider themselves as a Body distinct from the rest of the Citizens… Such a power should be watched with a jealous Eye.”[2]
Militias were by far the preferred means of defense. In 1774, John Hancock wrote, “From a well-regulated militia we have nothing to fear; their interest is the same with that of the state… They do not jeopardize their lives for a master who considers them only as the instruments of this ambition.”[3]
Fear that a standing army could become a government unto itself was not lessened by a near insurrection in Newburgh, New York, in March 1783. Washington had directed a residual force of more than 10,000 soldiers to be encamped seventy miles up the Hudson River from New York City. In enforced idleness, the officers and men impatiently awaited a formal end to the war, until which they were forbidden to leave and go home, as many desperately wanted to do. Discontent among over back pay, pensions, and lack of provisions grew by the day. In December 1782, a group of senior officers had forwarded a petition to Congress: “We have borne all that men can bear. Our property is expended, our private resources are at an end, and our friends are wearied out and disgusted with our incessant applications.”[4] They received nothing in return but hollow assurances.
Finally, on March 11, an address from “a fellow soldier” condemned Congress for its inaction and threatened to use force of arms to secure back pay, or, if the war did not end, to simply lay down their arms and go home. Washington was aghast that his soldiers would make such a threat and he demanded a meeting with the officers on March 15.
There, Washington, in a moment of brilliance equal to anything he did on the battlefield, blunted the soldiers’ fury. “This dreadful alternative, of either deserting our Country in the extremest hour of her distress,” he told them, “or turning our arms against it . . . has something so shocking in it, that humanity revolts at the idea.” Before reading from a paper detailing the nation’s desperate financial straits, Washington withdrew a pair of spectacles. “Gentlemen, you must pardon me. I have grown gray in your service and now I find myself growing blind.”[5]
The officers were stunned and some wept. Many of their grievances would not be addressed by a virtually bankrupt nation, but the army remained peacefully in place until the peace treaty was ratified, after which they returned home, likely to the enormous relief of the Confederation Congress.
But the question of national defense was unresolved and Washington remained convinced that militias, which he distrusted, were not the answer. At one point, he wrote, “They come in you cannot tell how, go, you cannot tell when; and act, you cannot tell where… They consume your provisions, exhaust your stores, and leave you at last in a critical moment.”[6]
In May 1783, he proposed to Congress, “A regular and standing force” with garrisons at West Point and elsewhere, supplemented by a “well-organized Militia upon a Plan that will pervade all the States,” including a series of national arsenals, and the establishment of military academies.[7]
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Once more, Congress refused to act. Distrust of a standing ran went far too deep, especially among those who would later be Antifederalists. As Richard Henry Lee wrote to James Monroe in January 1784, “You are perfectly right, Sir, in your observation concerning the consequence of a standing army—that it has constantly terminated in the destruction of liberty. It has not only been constantly so, but I think it clear from the construction of human nature, that it will always be so.” Lee also provided his alternative. “The spirit of the 4th section of the 6th article of the [Articles of] Confederation plainly discourages the idea of standing army, by the special injunctions concerning a well-regulated militia, which is indeed the best defence, and only proper security for a free people to venture upon.”[8]
Even some strong nationalists, such as George Mason, had qualms. In 1776, when he drafted the Virginia Declaration of Rights, Section 13, Mason wrote, “Standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.”[9]
For a militia to be effective, of course, it needed to be armed. Lee was strong on that point as well. He would later write that a “militia shall always be kept well organized, armed, and disciplined, and include, according to the past and general usage of the states, all men capable of bearing arms…to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.”[10] Patrick Henry had similar views. “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined…. The great object is that every man be armed. Everyone who is able might have a gun.”[11]
But both were talking of an armed population in lieu of a standing army. Neither Lee, Henry, nor any other white Virginian advocated a universal right to bear arms. Almost no one did. Free Blacks, of which there were almost sixty thousand, more than half of those in the South, were legally enjoined from owning weapons, as were those of mixed race. It was only in the context of the perceived future need of “citizen soldiers,” militia members, that armed civilians was discussed. Whether or not Americans—once again, white Americans—should have the inviolate right to keep weapons for self-defense, key to the current debate over gun ownership, was neither considered nor debated.
When the Constitutional Convention began, while virtually all the delegates favored private gun ownership, that is not to say they thought such a provision should be enshrined in the new Constitution, nor that the right was to be free of government control. In terms of national defense, although some, such as Charles Cotesworth Pinckney, a former army general, recognized the need for a standing army, few others felt the same. Still, avoiding a national military in favor of militias promised to be no easy task when Washington and those who had experienced both were bitterly opposed.
In many ways, the problem of balancing the needs of defending the nation with the antipathy to a permanent military force was similar to what the delegates faced with a national judiciary—overcoming the widespread fear that a national institution could be a source of tyranny and the tool of a despot.
In his Virginia Plan, presented to the convention by Edmund Randolph in late May, Madison chose to bypass the question entirely. The only oblique references were in Article 1, “Resolved that the Articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely, ‘common defence, security of liberty and general welfare,’” with no indication how common defense would be obtained, and in Article 11, “Resolved that a Republican Government & the territory of each State, except in the instance of a voluntary junction of Government & territory, ought to be guaranteed by the United States to each State,” with no indication how that guarantee would be enforced.
Madison, however, made his views clear to his fellow delegates on June 29, when he observed, “A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence against foreign danger have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.”[12]
Madison would echo his preference for well-regulated civilian militias in Federalist 46. “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”[13]
In Congress in 1789, after a committee had been formed to draft what would become the Bill of Rights, he would voice similar sentiments. “The right of the people to keep and bear arms shall not be infringed. A well-regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.”[14] (While this was a somewhat clearer statement than what eventually emerged as the Second Amendment, whether the people had a constitutional right to keep and bear arms for personal safety, unrelated to service in a militia, remained ambiguous.)
At the Convention, the subject of national defense was not broached until the Committee of Detail report in early August. Article VII, Section 1, which listed the powers proposed for Congress, included:
To subdue a rebellion in any State, on the application of its Legislature;
To make war;
To raise armies;
To build and equip fleets:
To call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions.[15]
The delegates did not take up that provision for two weeks. On August 18, George Mason began the discussion. “He hoped there would be no standing army in time of peace, unless it might be for a few garrisons. The Militia ought therefore to be the more effectually prepared for the public defence. Thirteen States will never concur in any one system, if the disciplining of the Militia be left in their hands. If they will not give up the power over the whole, they probably will over a part as a select militia. He moved as an addition to the propositions just referred to the Committee of detail, & to be referred in like manner, ‘a power to regulate the militia.”[16]
Mason’s proposal was a hybrid. In addition to “a few garrisons,” Mason’s proposal would effectively nationalize state militias—not exactly what Washington had in mind but not comporting to the proposals of his fellow Virginians Lee, Henry, and Madison either.
But Mason’s compromise did not even come to a vote. Later in the debates, Massachusetts’s Nathaniel Gorham moved to include “support” as well as “raise” armies, to which his fellow Bay Stater, Elbridge Gerry “took notice that there was (no) check here agst. standing armies in time of peace. The existing Congs. is so constructed that it cannot of itself maintain an army. This wd. not be the case under the new system. The people were jealous on this head, and great opposition to the plan would spring from such an omission.” He warned that “preparations of force” were being put in place by states that would oppose a standing army.
Still, Gerry recognized the need to not rely solely on state militias. To solve the problem, rather than an “indefinite number” of national soldiers, “He proposed that there shall not be kept up in time of peace more than [blank] thousand troops. His idea was that the blank should be filled with two or three thousand.” Luther Martin, an Antifederalist from Maryland, moved to support Gerry’s idea, suggesting a cap on the numbers of national troops except after a declaration of war, but General Pinckney asked, “whether no troops were ever to be raised until an attack should be made on us?”
After Gerry warned that without such a provision, “states may establish a military government,” Jonathan Dayton of New Jersey pointed out that “preparations for war are generally made in peace; and a standing force of some sort may, for ought we know, become unavoidable.”
The motion to cap the size of the army during peacetime was unanimously rejected. With resolution as far away as ever, Mason tried to bridge the divide by again suggesting a nationalized militia, adding to Congress’s powers a provision “to make laws for the regulation and discipline of the Militia of the several States reserving to the States the appointment of the Officers.” General Pinckney, who had experienced the dysfunction of an army comprised of polyglot units, agreed that uniformity was essential to a successful fighting force, something the states could not achieve alone.
But nationalizing the militia was going to engender serious opposition. Connecticut’s Oliver Ellsworth groused, “The whole authority over the Militia ought by no means to be taken away from the States whose consequence would pine away to nothing after such a sacrifice of power.” Ellsworth’s colleague Roger Sherman agreed, and John Dickinson added, “His opinion was that the States never would nor ought to give up all authority over the Militia. He proposed to restrain the general power to one fourth part at a time, which by rotation would discipline the whole Militia,” a notion not altogether different than the arrangement for today’s National Guard.
Here was the fundamental problem. As with many questions raised at the Convention, it seemed a near impossibility to effectively balance the acute need for a stronger central government—which was why the delegates were there in first place—with states’ refusal to cede sufficient power to make that government effective.
The bickering continued. After George Mason proposed giving Congress the power to regulate ten percent of the militia each year, as long as the states could appoint the officers, General Pinckney replied that splitting control between the federal government and the states “would be an incurable evil.” When Madison agreed with the general, Ellsworth stated definitively that “The States will never submit to the same militia laws.”
Charles Pinckney, the general’s cousin, countered that the states would agree to a national militia because they had no other choice. Referring to Shays’s Rebellion, which had created an uproar in Ellsworth’s Connecticut and across New England, he noted, “The United States had been making an experiment without [a national military] and we see the consequence in their rapid approaches toward anarchy.”
But New Englanders Sherman, Ellsworth, and Gerry were unmoved, Gerry claiming simply, “He had no confidence in the Genl. Govt.”
After more fruitless back and forth, the convention referred the question to a committee, which returned a proposal close to Mason’s, giving Congress the authority, “To make laws for organizing arming and disciplining the Militia, and for governing such part of them as may be employed in the service of the US reserving to the States respectively, the appointment of the officers, and the authority of training the Militia according to the discipline prescribed by the U. States.”[17]
The clause was not debated until August 23, by which time most of the delegates finally recognized that some uniformity in the manner of training discipline, and even armaments was essential. As such, Rufus King made an interesting point. “That by organizing the Committee meant, proportioning the officers & men- by arming, specifying the kind size and caliber of arms- & by disciplining prescribing the manual exercise evolutions &c.” Madison clarified King’s statement by adding, “that ‘arming’ as explained did not extend to furnishing arms,” which, taken together would mean that while the citizenry should have the right “to keep and bear arms,” the federal government reserved the right to define what those arms may be. King then “added to his former explanation that arming meant not only to provide for uniformity of arms, but included authority to regulate the modes of furnishing, either by the militia themselves, the State Governments, or the National Treasury.”[18]
Sidestepping the standing army question, the delegates eventually gave Congress the power “To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years.” Gerry tried to reduce two years to one on the grounds that two years was tantamount to authorizing a standing army but was heartily voted down. At this point, the relief among the delegates was palpable and there was little chance of them attempting any change that would create further debate.
Congress was also authorized “To provide and maintain a navy,” and “To make rules for the government and regulation of the land and naval forces,” which were accepted without dissent.
With the militia as well, controversy melted away as the delegates realized that might actually gain a finished product. Each side had achieved something. For those who opposed a standing army, empowering Congress “To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions” might obviate the need for one. For those who wanted to ensure that the national government would have military sufficient resources if the need arose, Congress was authorized “To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.”
What was not included was more detail on what “arming” a militia might entail. Madison and Rufus King’s suggestion that arms be standardized to facilitate both training and performance was not included, nor if arming the militia meant members bringing their own weapons, although everyone certainly believed that many members would. That left open the questions of whether civilians would be required to own weapons, allowed to own weapons, and what, if any, restrictions on owning weapons the government might impose.
Certainly, sentiment in the nation was very definitely in favor of an armed citizenry—at least an armed white citizenry—and not simply for militia service. Noah Webster, most famous for his dictionary, was also an ardent Federalist, having studied law under Oliver Ellsworth. Less than one month after the Constitution was signed, he wrote, “Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed and constitute a force superior to any band of regular troops.”[19]
The following year, Richard Henry Lee would write, “No free government was ever founded, or ever preserved its liberty, without uniting the characters of the citizen and soldier in those destined for the defense of the state…such area well-regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.”[20]
Still, it is difficult to separate Americans’ feelings about an armed populace and the preference for a militia over a standing army. As Elbridge Gerry would say in Congress, “What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty …. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.”[21]
But the desire for an armed citizenry and the need for citizen soldiers to be prepared to go into battle is not the same thing as guaranteeing that any American could own any weapons for any purpose without the possibility of government control or regulation. It also does not mean that the right to own guns for self-defense allows any citizen to carry any weapon in public because of an unstated or obscure threat. Absent a more detailed explanation of the role of both the militia and the weaponry that citizens “keep and bear,” these questions would seem to have been delegated, like so many others, to Congress to make the appropriate rules.
And the First Congress would do so, not with a law, but rather with an amendment to the Constitution, one of ten that were adopted from twelve that were proposed. Those ten, the “Bill of Rights,” had become necessary after the convention, which had unanimously voted against the idea, but had unwittingly left Antifederalists with an issue that could scuttle ratification. In order to get the Constitution approved, Madison, who had opposed a Bill of Rights in Philadelphia, was forced to quickly pivot, as did a number of other delegates who represented their states in ratifying conventions.
The wording of the second of those amendments, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed,” did not make clarification of the militia clauses any easier. For more than two centuries, the amendment was seen to ensure that national defense, in theory entrusted largely to militias, would be assured in times of need or crisis.
The Supreme Court seemed to affirm that meaning in 1939, when, James McReynolds, speaking for a unanimous Court in United States v. Miller, wrote “We construe the [Second] amendment as having relation to military service and we are unable to say that a sawed-off shotgun has any relation to the militia.”[22]
Miller, as the sawed-off shotgun might indicate, was an unusual case, stemming from a challenge to the 1934 National Firearms Act, itself a response to the carnage spawned by Prohibition era gang wars, including the notorious St. Valentine’s Day Massacre, in which seven members of Chicago’s Bugs Moran gang were executed with submachine guns on February 14, 1929 in a Lincoln Park garage by Al Capone’s henchmen. The law imposed taxes on the sale or transfer of a variety of hand and long guns, required certain categories of firearms be registered, and restricted the movement of firearms across state lines.
In April 1938, Jack Miller and Frank Layton, two bank robbers on the run from both the law and their associates, were arrested and charged with transporting unregistered sawed-off shotguns across state lines. Miller had every reason to feel the need to carry a weapon—in 1935, he had turned state’s evidence to avoid a prison sentence, about which his colleagues were none too pleased.
Miller, although an unlikely plaintiff, sued in federal court to void his arrest on Second Amendment grounds. The judge, a gun control advocate, sided with Miller, which resulted in Miller’s release from prison, where any number of unhappy former associates were waiting for him. The decision was contrived—the judge assumed that Miller would flee and thus allow the government to win its appeal of Miller’s dismissal virtually by default. His assumption proved correct. As soon as he was a free man, Miller promptly vanished.
As a result, when the government appealed the dismissal to the Supreme Court in January 1939, there was no one on the other side to contest its brief. Miller’s and Layton’s court appointed lawyer, appearing pro bono, refused to do any more work on their behalf. Oral arguments—or, rather, argument—were heard on March 30, 1939, and the decision was published only six weeks later.
McReynolds and his fellow justices deemed the meaning of the Second Amendment so obvious, so related to the need for citizen soldiers in a nation that had no standing army, that the argument that Miller or anyone else had the right to carry whatever weapon they wanted wherever they wanted was absurd.
Echoing the debates in Philadelphia, McReynolds noted, “The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia—civilians primarily, soldiers on occasion.”[23]
After observing that no state law seemed in conflict with this reading of the Second Amendment, the Court dismissed the appeal.
(Jack Miller, however, was not around to learn of the verdict. Four days after oral arguments, his body was found with four bullet holes near Ketchum, Oklahoma. The crime remained unsolved. Layton, who had kept a much lower profile, was eventually given five years’ probation for violating the National Firearms Act and died of natural causes in 1967.)
The Miller decision attracted little attention at the time, since almost no one interpreted the Second Amendment as anything other than an anachronism, rendered obsolete by the creation of a professional military.[24]
That all changed in 2008, when in a bitterly contested 5-4 decision in District of Columbia v. Heller, Antonin Scalia for the first time ruled that the Second Amendment also guaranteed an individual’s right to keep gun in the home for self-defense.[25] He dismissed the Miller ruling with an inventive ploy, applying it not to an individual’s right to keep and bear arms, but rather only to the weapon, specifically the sawed-off shotgun, implying that the 1939 decision would have been different if the firearm had been different.
“It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for … military purposes” but for “nonmilitary use.” Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection.”[26]
Using this quite questionable reasoning, Scalia was thus able to end-run McReynolds’s principal argument that the amendment had been rendered moot by the establishment of a standing army.
John Paul Stevens issued a withering dissent, in which he wrote, “The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text.”
Taking Scalia to task, he added, “The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.” He added, “Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there.”[27]
Even Scalia, however, refused to universally apply the amendment’s guarantee to all weapons owned by all people in all settings, but ruled only that a gun kept in the home for self-defense by a private citizen was a protected right. “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment,” he wrote, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” As a result, it seemed, any number of laws limiting the sale or use of firearms could have passed that did not infringe on the Heller decision.
Many of those potential limitations were short-circuited, however, when, in 2022, in his majority opinion in New York State Rifle & Pistol Association v. Bruen, Clarence Thomas extended Heller to, among other locations, streets, and shopping malls. In adopting the most expansive view of the Second Amendment in American history, Thomas and five of his colleagues ruled that, “that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”[28]
The suit was brought by two New Yorkers who were denied concealed weapons permits because they did not have “proper cause,” as required by New York law, which required that an applicant “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” In other words, someone could not tote around weapons simply because he or she said it was needed for self-defense—a dubious justification for most, but one that just about anyone could use.
The two lost both in district and circuit courts and appealed to the Supreme Court, where Thomas again applied his originalist philosophy to Second Amendment law.[29] Because, in 1791, carrying weapons in public, many of which could not be relied on to hit a target across the room, was common and permits were not required, “The Court concludes that [New York] failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement.”
Citing Heller, Thomas expanded Scalia’s rationale. “Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of ‘bear’ naturally encompasses public carry.”
Both opinions, though theoretically based in history, ignored that in 1787, the right—or the requirement—to own weapons was totally based on the need for militias because of the deep distrust and prohibitive cost of a standing army. Even using 1791 as a base, Thomas failed to mention that of the gun control measures that were in effect, one was a prohibition on African Americans, both free and enslaved, owning firearms in most states.
He did concede that in certain “sensitive areas,” such as schools, churches, and government buildings, “courts can use analogies to ‘longstanding’ laws to determine whether modern regulations are constitutionally permissible.”
But his sensitive area standard was extremely limited and did not apply to public streets. Or parks. Or shopping malls. Or nightclubs. Or movie theaters. Or public transportation. Or any number of places where people gather in close proximity. In other words, with few exceptions, carrying a concealed—or perhaps an unconcealed—weapon could not be prohibited in cities, a point which New York stressed. But Thomas refused to make exceptions.
“[New York’s] argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense. Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.”
A questionable conclusion to be sure, but, in something of an irony, Thomas’s “historical basis” argument could well apply to the conviction of Hunter Biden.
In the period Thomas cites there was no permitting per se and restrictions on weaponry tended to be, as he noted, to categories of place rather than categories of (white) person. Thus there seems no historical basis for denying the right to bear arms to drunks, the mentally ill, spousal abusers…or drug addicts.
There were no drug addicts in modern sense of the term in 1791. Opium was pretty much the only addictive drug available, but there were no legal standards to define an addict, nor was opium addiction considered a crime. As such, there were no prohibitions on drug addicts owning weapons.
Therefore, it could clearly be argued that if the two New Yorkers who wanted to carry a pistol on the streets of Manhattan could not be denied permits, neither could Hunter Biden. And, if he could not be denied a permit based on his drug addiction, the requirement that he admit to that addiction on the permit application would amount to self-incrimination in violation of his Fifth Amendment rights.
***
Regardless of whether the nation’s founders believed that private individuals should have the right to own weapons, an amendment clearly written for one purpose has been shapeshifted into another and the original intent of the amendment has virtually disappeared from both jurisprudence and public discourse. As a result, Second Amendment law has descended into the preposterous notion of whether the founders would have agreed that a man or woman, heavily armed, could stroll into a supermarket, movie theater, or public park with his or her hand on the grip of a holstered pistol in plain view of other citizens, including perhaps children. In some states, residents can do just that without having obtained a permit for those weapons or training in their use and safe handling.
That leads to the question of whether if had Madison included “trained to arms” in the Second Amendment, would the meaning and the resulting jurisprudence have changed? “The right of the people to keep and bear arms shall not be infringed. A well-regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country,” might be interpreted as requiring gun owners to undergo at least some minimum training.
In addition, there is also the question whether “not infringe” also means “not control.” Neither the Heller nor Bruen rulings barred state or federal limitations on the ownership and bearing of arms per se, but just where limits might be placed was not addressed and, after Bruen, the guidelines became even more vague. There have been many suggestions, including requiring gun purchasers to attend training sessions, or purchase liability insurance, or demonstrate an absence of mental illness counseling or substance abuse, but each of these could easily be ruled on being excessively burdensome on those who wish to own firearms. (Thomas’s dissent in U.S. v. Rahimi, citing lack of historical precedent for denying weapons to those who commit domestic violence, would bear that out.)
In the end, absent a more specific definition of the founders’ intentions regarding both a national military and private ownership of weapons, both gun rights and gun safety laws remain at the whim of Congress and especially the judiciary. Given the horrific record of gun violence and mass shootings in the United States, neither of these branches have proved to be the optimal venue to define public safety.
[1] https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/continental-army/
[2] Richard H. Kohn. Eagle and Sword: The Federalists and the Creation of the Military Establishment in America, 1783-1802. New York: Free Press, 1975, 2.
[3] Kohn, Eagle, 6.
[4] Richard H. Kohn. “The Inside History of the Newburgh Conspiracy: America and the Coup d’Etat.” The William and Mary Quarterly, April 1970, Vol. 27, No. 2, 189.
[5] https://www.gilderlehrman.org/sites/default/files/inline-pdfs/t-2437.09443.pdf
[6] Kohn, Eagle, 10-11
[7] May 2, 1783. Writings 26:374–76
[8] The Letters of Richard Henry Lee. Edited by James Curtis Ballagh. 2 vols. New York: Macmillan Co., 1911–14. 2:287–88
[9] https://www.archives.gov/founding-docs/virginia-declaration-of-rights. That the phrasing is much the same as the Second Amendment is not an accident.
[10] Lee. Federal Farmer 18, January 25, 1788, https://teachingamericanhistory.org/document/federal-farmer-xviii/
[11] Elliot, Debates, iii:45
[12] Farrand, i:465
[13] Federalist 46, https://avalon.law.yale.edu/18th_century/fed46.asp
[14] James Madison, I Annals of Congress 434, June 8, 1789
[15] Committee of Detail Report. https://www.quillproject.net/resources/resource_item/56/3139
[16] The August 18 debates are in Farrand, ii:324-33.
[17] Farrand ii:356
[18] Farrand ii:385
[19] Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787. https://teachingamericanhistory.org/document/a-citizen-of-america-an-examination-into-the-leading-principles-of-america/
[20] Richard Henry Lee, Charleston Gazette, September 8, 1788.
[21] Rep. Elbridge Gerry of Massachusetts, I Annals of Congress 750, August 17, 1789
[22] 307 US 174 (1939)
[23] ibid.
[24] For a comprehensive and highly readable history of gun control in the United States, see Adam Winkler. Gunfight: The Battle over the Right to Bear Arms in America. New York: WW Norton, 2011.
[25] 554 U.S. 570 (2008)
[26] ibid.
[27] ibid.
[28] 597 U.S.__ (2022)
[29] “Originalism,” briefly stated, holds that “legal texts, especially the U.S. Constitution, should be interpreted as they were understood at the time of their adoption.”